Conviction for threatening Obama reversed

A federal appeals court ruled Tuesday that a La Mesa man’s racist, online rantings against President Barack Obama when he was running for office were “repugnant” but not crimes and reversed his 2009 conviction.

A divided three-judge panel ruled for Walter Bagdasarian, who posted two statements to a message board on Yahoo! Finance in October 2008. Judge Stephen Reinhardt said while the statements were “alarming and dangerous,” there was insufficient evidence for someone to conclude that Bagdasarian meant to kill Obama, or that he intended them to be taken as threats. Both elements are needed to uphold the charge of making threats against a major presidential candidate.

Using the name “californiaradial” on the message board, Bagdasarian made his online post in the early morning hours of Oct. 22, 2008. He used shorthand for an expletive and a racial epithet in referring to Obama and wrote, “he will have a .50 cal in the head soon.”

About 20 minutes later, he wrote a second posting that included the phrase, “shoot the (epithet).” Secret Service agents traced the messages to Bagdasarian and he was indicted on two counts of making threats to a major presidential candidate.

He was convicted in July 2009 by U.S. District Judge Marilyn Huff in﻿ a two-day, nonjury trial and sentenced to two months in a halfway house. During the trial, Bagdasarian’s lawyer, Ezekiel Cortez, said his client was drunk and did not mean the online rants to be taken seriously.

Reinhardt, considered the 9th circuit’s leading liberal voice, wrote that when the comments were taken in their overall context there is “insufficient evidence that either statement constituted a threat or would be construed by a reasonable person as a genuine threat by Bagdasarian against Obama.”

He wrote that threatening speech is protected under the First Amendment if the government does not prove that the speaker specifically intended the words to be a threat.

Judge Kim Mclane Wardlaw dissented, writing that others on the message board were alarmed by Bagdasarian’s comments and one reported them to the Secret Service. That shows the statements were taken seriously by others, Wardlaw said.

She also wrote that there was enough evidence to support the conclusion Bagdasarian intended to make a threat. He made several other comments on the message board that night that were not charged, and when he was arrested he had a .50-caliber rifle in his home, she noted.

“That Mr. Bagdasarian later made a public apology does not detract from his intent at the time; his intent to threaten harm to candidate Obama generated fear for the candidate’s safety and mobilized the Secret Service, which tracked Mr. Bagdasarian down,” Wardlaw wrote.

Cortez did not respond to a request for comment Tuesday afternoon. The U.S. Attorney’s Office declined to comment on the ruling.